Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(11) (May 2005)

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Irish Law Reform Commission Papers and Reports

You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(11) (May 2005)
URL: http://www.bailii.org/ie/other/IELRC/2005/3(11).html
Cite as: [2005] IELRC 73(11)

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11. CHAPTER 11 SUMMARY OF RECOMMENDATIONS

Chapter 1 Public Inquiries

11.01 The Commission recommends that section 23(3) of the Commissions of Investigation Act 2004, which restricts the types of legal services or fees for which payments may be made, be repealed. [Paragraph 1.29]

Chapter 2 Nature of and Establishment of Tribunals of Inquiry

11.02 The Commission recommends that the tribunals of inquiry legislation be amended to provide that: ?? Tribunals of Inquiry are inquisitorial in nature. ?? Tribunals of Inquiry have no power to determine or to rule on, any person's civil or criminal liability. ?? A Tribunal of Inquiry is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes. [Paragraph 2.16]

11.03 The Commission recommends that as tribunals of inquiry are designed to investigate facts and make recommendations to prevent re-occurrence, rather than to establish liability or punish people, those charged with the power to establish such inquiries should give careful consideration to the public interest in the matter under examination before deciding to establish an inquiry. [Paragraph 2.21]

11.04 The Commission recommends that the tribunals of inquiry legislation be amended to confer the power to establish tribunals of inquiry on the Executive, and that this power should only be

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exercised on foot of a resolution of both Houses of the Oireachtas. [Paragraph 2.37]

11.05 The Commission does not recommend the establishment of a permanent standing inspectorate for public inquiries. [Paragraph 2.46]

11.06 The Commission recommends the establishment of a central inquiries office which would be charged with collecting and managing a database of records and information for tribunals of inquiry and public inquiries generally. [Paragraph 2.51]

11.07 The Commission recommends that the proposed Central Inquiries Office prepare a booklet, which would set out in a clear and easy to read format a series of guidelines for those charged with establishing public inquiries, those running them and those staffing them. [Paragraph 2.53]

11.08 The Commission recommends that careful consideration should be given to the location of the Central Inquiries Office having regard to the points raised. [Paragraph 2.62]

11.09 The Commission recommends that provision should be made to allow a tribunal to be conferred with separate legal personality. Such a provision (based on the model provided by the Commission to Inquire into Child Abuse Act 2000) might read as follows:

(1) An instrument to which this Act applies may provide that the tribunal shall be a body corporate with perpetual succession and the power to sue and be sued in its corporate name. [Paragraph 2.66]

11.10 The Commission recommends that the tribunals of inquiry legislation be amended to provide expressly for the independence of tribunals of inquiry and their members. [Paragraph 2.70]

Chapter 3 Terms of Reference

11.11 The Commission recommends that the tribunals of inquiry legislation be amended to impose a requirement that terms of reference should set out the events, activities, circumstances, systems, practices or procedures to be inquired into as clearly and as accurately as possible. [Paragraph 3.19]

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11.12 The Commission recommends that a two-stage approach should be taken to the drafting of the terms of reference. After a resolution is made establishing a tribunal, the precise terms of reference should be drafted by the person or persons appointed as members of the tribunal of inquiry, in consultation with the sponsoring Minister and such other persons or bodies as the tribunal considers appropriate. At the second stage, the draft terms of reference should be submitted to the Oireachtas for approval. In addition, the terms of reference should be accompanied by a memorandum setting out the length of time the proposed inquiry will take and subject to the Commission's recommendation at paragraph 7.36 the anticipated cost of the inquiry. [Paragraph 3.21]

11.13 In light of the Commission's recommendation that the tribunal itself should draft its precise terms of reference, the provisional recommendation it expressed in the Consultation Paper that the tribunal should be placed under a positive obligation to consider whether to request an amendment within 4 weeks of establish is no longer necessary. [Paragraph 3.31]

11.14 The Commission recommends that the following procedure, based on those in the Commissions of Investigation Act 2004, should be adopted in respect of the amending of the terms of reference of an inquiry:

• The Sponsoring Minister and the Tribunal should be given the power to request an amendment of the terms of reference. Where the person seeking the amendment is the Sponsoring Minister, the consent of the tribunal should in general be sought. The requirement of generality is to prevent the discretion of the Oireachtas appearing to be subject to a decision of a tribunal obtained where the proposed amendments clarify, limit or extend the scope of its inquiry.

• The tribunal should be expressly prohibited from either seeking or consenting to a request for an amendment where it takes the view that the proposed amendment would prejudice the legal rights of any person who is adversely affected by the proceedings of the tribunal.

• The Oireachtas must consent to the amendment by means of a Resolution of both Houses.

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• Where the terms of reference are amended the Sponsoring Minister must ensure that the statement accompanying the terms of reference is revised where the previous estimate of costs and duration is no longer appropriate. In addition, the Sponsoring Minister must cause the revised accompanying statement to be published in Iris Oifigiúil and such other publication, as he or she considers appropriate. [Paragraph 3.32]

Chapter 4 Membership

11.15 The Commission recommends that the tribunals of inquiry legislation be amended to confer an express power to appoint members of the tribunal on the Government. [Paragraph 4.15]

11.16 The Commission recommends that where the inquiry is likely to involve legal issues, the Chairperson of an Inquiry Panel should be a member of the judiciary. However, the Commission does not recommend that this should be expressed in legislation as there may be circumstances in which, having regard to the subject matter of the inquiry, it is more appropriate that the chairperson be someone with expertise in the area under investigation. The Commission therefore concludes that the Government should be free to appoint laypersons as ordinary members of the tribunal. [Paragraph 4.41]

11.17 Where the Government is contemplating appointing a member of the judiciary to an inquiry, the Commission recommends that the tribunals of inquiry legislation should be amended to require consultation with, and the agreement of, the President of the court of which the proposed appointee is a member. [Paragraph 4.42]

11.18 The Commission recommends that the tribunals of inquiry legislation should be amended to deal expressly with the circumstances in which a member of an inquiry may be dismissed, namely on the grounds of misbehaviour or inability to perform the functions of the office. [Paragraph 4.52]

11.19 The Commission recommends that where a new member of a tribunal is appointed, the tribunals of inquiry legislation should be amended to provide "that this is not to occur unless the tribunal is satisfied that no person affected by the proceedings of the tribunal would be unduly prejudiced thereby." [Paragraph 4.55]

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11.20 The Commission recommends that the tribunals of inquiry legislation should retain the provision for the appointment of reserve members and that the law relating to the appointment, qualifications, removal, and effect of a removal of a reserve member should be the same as that for members. [Paragraph 4.61]

11.21 The Commission recommends that the tribunals of inquiry legislation be amended to confer a power on a tribunal of inquiry to appoint experts to carry out research pertinent to the matter under investigation, subject to the approval of the sponsoring Minister and the Minister for Finance and the need to avoid unnecessary cost. [Paragraph 4.64]

11.22 The Commission recommends that the power to appoint experts include the power to appoint assessors where appropriate. [Paragraph 4.71]

Chapter 5 Procedures and Constitutional Justice

11.23 The Commission does not recommend that a formal code of procedure be established for tribunals of inquiry. It recommends that the proposed Central Inquiries Office should draw up a handbook setting out briefly the law relating to tribunals of inquiry, a summary of the law relating to constitutional justice and its implications for tribunals of inquiry, and the procedures which have been adopted by previous inquiries both in Ireland and abroad. [Paragraph 5.11]

11.24 The Commission notes that the principles of constitutional justice listed by the Supreme Court in In re Haughey [1971] IR 217, namely, the right to copies of evidence taken, the right to crossexamination by a lawyer, the right to give rebutting evidence, and the right to address a tribunal through a lawyer, do not apply to all parties before a tribunal. They apply only to a person in the equivalent position of a person charged with a serious offence, whose conduct is the subject matter of the inquiry and who can point to a right, such as their good name and reputation, which is under threat. [Paragraph 5.27]

11.25 The Commission recommends that before exercising their discretion to grant representation, tribunals of inquiry should consider:

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• Whether constitutional justice requires the granting of representation;

• Whether the granting of such representation would assist the tribunal;

• Whether counsel for the inquiry could discharge the functions sought to be achieved by granting witnesses representation;

• Whether pooled representation would be appropriate;

• Whether individual representation would be appropriate;

• Whether a mixture of pooled representation and individual representation would be appropriate;

• Whether the tribunal should appoint counsel to act as guardian of the witnesses interests. [Paragraph 5.37]

11.26 The Commission recommends that, in respect of the two types of individual legal representation, limited representation and full representation, the entitlement to either will depend on the extent to which an individual's rights are at risk. If they are at risk during the whole inquiry, the Commission recommends that full representation should be granted whereas if they are at risk only at certain stages of the inquiry, limited representation only should be granted. [Paragraph 5.40]

11.27 The Commission recommends that in appropriate cases, witnesses may either be issued with notices of potential criticism or be re-called (or provide a written statement) in order to address potential criticism that has come to light since they gave evidence. [Paragraph 5.47]

11.28 The Commission recommends that tribunals must ensure that appropriate cross-examination is provided for where the rights of an individual, including good name and reputation, are at issue. The Commission also recommends that this should not in any way restrict the right of a tribunal to control prolixity or cross-examination by successive counsel. [Paragraph 5.52]

11.29 The Commission recommends that where appropriate uncontested evidence should be simply "read into" the record. [Paragraph 5.54]

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11.30 The Commission recommends in the context of the right to call evidence in rebuttal, that parties be encouraged to inform the inquiry of the existence of useful potential witnesses. [Paragraph 5.56]

11.31 The Commission recommends that tribunals of inquiry adopt a tailored approach to the right to make submissions to the inquiry which could include placing indicative time limits on submissions while ensuring that the full constitutional protection is furnished. [Paragraph 5.58]

11.32 The Commission recommends that the tribunals of inquiry legislation should be amended to make express provision for a preliminary investigation stage. [Paragraph 5.64]

11.33 The Commission recommends that private preparatory meetings be governed by a written protocol. Such a protocol would set out the rights and duties of those participating in such meetings and inform those present of the manner in which such information can be used. The Commission also recommends that the chairperson of an inquiry should exercise a greater degree of oversight over the manner in which such meetings are being conducted. [Paragraph 5.72]

11.34 The Commission recommends that the provision of section 6 of the Tribunals of Inquiry (Evidence)(Amendment) Act 2002, which deal with the appointment of investigators to carry out preliminary examinations, should be retained in the tribunals of inquiry legislation. [Paragraph 5.79]

11.35 The Commission recommends that the proceedings of tribunals of inquiry should in general be conducted in public, in accordance with the approach currently contained in the tribunals of inquiry legislation, but that this should be clarified in line with the view taken by the Supreme Court that this does not apply to any information gathering stage. [Paragraph 5.89]

11.36 The Commission recommends that the tribunals of inquiry legislation be amended to allow a discretion to permit such broadcasting of its proceedings as the tribunal considers appropriate on the basis that in deciding whether to allow filming, recording, or broadcasting of the proceedings of the tribunal, the tribunal shall have regard to the following considerations:

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• the interests of the general public, particularly the right to have the best available information on matters of urgent public importance;

• the proper conduct and functioning of the tribunal proceedings;

• the legitimate interests of the participants;

• the risk of prejudice to criminal proceedings;

• any other relevant considerations. [Paragraph 5.105]

11.37 The Commission recommends that the tribunals legislation be amended to allow evidence to be taken on commission within the jurisdiction as well as abroad. In addition, the Commission recommends that the obligation to conduct hearings in public would be satisfied by the circulation to the public present at the proceedings of a copy, in writing, of the statement that is being adduced as evidence, where:

(i) a witness is called to give oral evidence and the written statement forms part only of his or her evidence; or (ii) the written statement of a witness is not in dispute between those persons who have been authorised by the tribunal to be represented at the part of the proceedings at which it is being adduced and the tribunal does not propose to call the witness to give oral evidence. [Paragraph 5.110]

Chapter 6 Powers

11.38 The Commission recommends that the tribunals of inquiry legislation should be amended to contain the following provision concerning the powers of tribunals: A tribunal of inquiry may make such orders as are necessary and reasonable for the purposes of its functions. Without prejudice to the generality of the foregoing, it may make orders:

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a) Enforcing the attendance of witnesses and examination of them on oath, affirmation or otherwise; b) Compelling the production of documents or things; c) Issuing a commission or request to examine witnesses. [Paragraph 6.27]

11.39 The Commission recommends that the tribunals of inquiry legislation should continue to contain provisions equivalent to section 1(2)(a)-(e) of the Tribunals of Inquiry (Evidence) Act 1921 which deal with attempts to obstruct or hinder a tribunal. [Paragraph 6.49]

11.40 The Commission does not recommend that there should be a specific offence of publishing or disclosing confidential material as it considers that the tribunals of inquiry legislation in dealing with obstruction or hindrance already caters for such offences. [Paragraph 6.59]

11.41 The Commission recommends that the tribunals of inquiry legislation should retain the power of a tribunal of inquiry to apply to the High Court for an order enforcing an order of the tribunal. [Paragraph 6.61]

11.42 The Commission recommends that the tribunals of inquiry legislation should continue to define the privileges and immunities of witnesses by reference to the privileges and immunities of witness in High Court proceedings. [Paragraph 6.65]

Chapter 7 Costs

11.43 The Commission recommends that the first part of section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, which deals with the awarding of costs, be redrafted as follows: "Where a tribunal…is of the opinion that having regard to:

(i) the findings of the tribunal in relation to its subjectmatter as indicated in the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal; (ii) and all other relevant matters (including failing to co-operate with or provide assistance to, or

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knowingly giving false or misleading information to the tribunal and the means of a party), there are sufficient reasons…" [Paragraph 7.19]

11.44 The Commission recommends that the chairperson of an inquiry should be required by amended tribunals legislation to have regard to the need to avoid any unnecessary costs in making any decision as to the planning, procedure or conduct of an inquiry. [Paragraph 7.25]

11.45 The Commission recommends that sensible arrangements regarding the division of subject-matter and the sequence in which topics are taken should be followed so as to minimise wasted time and control costs. [Paragraph 7.33]

11.46 The Commission recommends that the sponsoring Department, following consultation with the Department of Finance, should set a broad budget figure at the outset of the tribunal. Such estimates should be used for internal control purposes and need not be made public at the outset of a tribunal. [Paragraph 7.36]

11.47 The Commission emphasises that the inquiry itself should give considerable thought to what level of representation it engages for particular tasks. The Commission considers that there is some scope for a closer match between the difficulty of the work and the ability and experience (and therefore cost) of the lawyer or paralegals or other multidisciplinary teams retained to do it. [Paragraph 7.39]

11.48 The Commission considers that flexible arrangements should be put in place in relation to the engagement and remuneration of lawyers and other personnel involved in tribunals which may involve a fee structure and a tendering process where either of them are appropriate. The Commission also considers that the existing procedure whereby the tribunal can engage a particular lawyer at an agreed level of remuneration should be retained. [Paragraph 7.59]

Chapter 8 Judicial Review and Applications to the Court

11.49 The Commission recommends that a statutory time limit of 28 days from the date on which the grounds for the application first arose should be placed on the institution of judicial review proceedings in the context of public inquiries, subject to a judicial

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discretion to extend this time-period where the High Court considers that there is a "good and sufficient reason for doing so". [Paragraph 8.05]

11.50 The Commission recommends that the tribunals of inquiry legislation be amended to allow a tribunal apply to the High Court for directions, in a manner comparable to that contained in the Commission to Inquire into Child Abuse Act 2000. [Paragraph 8.09]

11.51 The Commission recommends that the tribunals of inquiry legislation be amended to include a provision placing an obligation on the High Court to deal with proceedings concerning tribunals of inquiry as expeditiously as possible. Such a provision would enable tribunals of inquiry to proceed as expeditiously as possible. [Paragraph 8.12]

Chapter 9 Suspension, Dissolution or Termination

11.52 The Commission recommends that the tribunals of inquiry legislation should be amended to confer a power on the Houses of the Oireachtas, to suspend by resolution the work of a tribunal in exceptional circumstances, such resolution being sponsored by the Minister responsible for the operation of the inquiry. [Paragraph 9.05]

11.53 The Commission is of the view that the tribunals of inquiry legislation should be amended to deal expressly with the circumstances in which a tribunal of inquiry stands dissolved on fulfilling its terms of reference. [Paragraph 9.07]

11.54 The Commission recommends that the following provision be inserted into the tribunals of inquiry legislation "Where at any time it has been resolved, for stated reasons, by both Houses of the Oireachtas that it is necessary to terminate the work of a tribunal, the relevant Minister or the Government may by order dissolve the tribunal." [Paragraph 9.16]

Chapter 10 Reports and Downstream Proceedings

11.55 The Commission recommends that the procedure to be followed concerning the publication of interim and final reports should be dealt with expressly in the tribunals of inquiry legislation. The Commission favours the approach adopted in sections 32 to 38 of the Commissions of Investigation Act 2004 and recommends that it

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should be the basis for the amendment of the tribunals of inquiry legislation in this respect. [Paragraph 10.16]

11.56 The Commission recommends that that the tribunals of inquiry legislation be amended to provide as follows:

(i) Information, documents or other material provided by a person to or before a tribunal (or an investigator, as the case may be) whether pursuant to an order or request, which are used in evidence, shall not be admissible as evidence against that person in any criminal proceedings (other than proceedings in relation to an offence under section 35 and perjury in respect of such information, evidence, documentation or other material) (ii) For the purposes of subsections (1) and (2) ''information, evidence, document or other material'' includes data, all forms of writing and other text, images (including maps and cartographic material), sound, codes, computer programmes, software, databases and speech. [Paragraph 10.38]

11.57 The Commission does not recommend any amendment to the tribunals of inquiry legislation concerning potential prejudice of subsequent criminal proceedings. [Paragraph 10.50]

11.58 The Commission recommends that reports prepared by tribunals of inquiry should be regarded as prima facie proof in civil proceedings of the facts set out therein and the opinion of the inquiry. It recommends that the following provision be inserted into the tribunal of inquiry legislation. "A report of a tribunal of inquiry appointed under the provisions of this Act shall be admissible in any civil proceedings as evidence— i. of the facts set out therein without further proof unless the contrary is shown, and ii. of the opinion of the tribunal in relation to any matter contained in the report." [Paragraph 10.53]

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	Irish Law Reform Commission Papers and Reports
You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(11) (May 2005) URL: http://www.bailii.org/ie/other/IELRC/2005/3(11).html Cite as: [2005] IELRC 73(11)